Durant ends his data protection battle

Michael Durant, who lost a landmark Court of Appeal ruling on
the meaning of "personal data" two years ago, has withdrawn his
petition to the House of Lords. This means the House of Lords will
no longer review the Court of Appeal's narrow interpretation of the
definition.12 Oct 2005

The focus of attention now turns to the European Commission which has used the Durant decision as evidence that the UK's Data Protection Act of 1998 is a defective implementation of the Data Protection Directive of 1995.

The ground-breaking privacy case began when Mr Durant wanted access to personal information held by the Financial Services Authority. The FSA refused and Mr Durant took the matter to court.

Mr Durant lost his case in the Court of Appeal in December 2003 when the Court ruled that merely mentioning an individual's name in a document does not make that whole document "personal data" which can then be obtained, by the individual, via the data protection right of access to personal data. In making this ruling, the Court narrowed the scope of "personal data" to that personal information whose content was focused on a particular individual who was the subject of personal data.

The Court also confirmed that paper-based personal information was subject to the Act but only if the information was recorded in a very highly structured filing system. The Court had in mind a manual system which possessed the functionalities of a relational database so that specific information about a particular individual could be readily pinpointed within the system.

The position for manual files has changed for the public sector because of the Freedom of Information (FOI) legislation which came into full force in January 2005 and which provides an individual access to any recorded information which focuses on that individual. But the Durant decision still means that very little of such manually held personal information would not be subject to other aspects of the Data Protection Act (e.g. most manual files containing personal details would not be subject to all of the Data Protection Principles).

This means that from the perspective of private businesses which are not subject to FOI rules, the Durant decision in the Court of Appeal effectively reinstated the privacy standards set by the previous Data Protection Act of 1984, by excluding manually held personal files and thereby limiting the application of the 1998 Act to automatic processing of personal data which directly referred to identifiable individuals.

The European Commission is believed to have cited the Durant ruling as one reason to suggest that the UK's Data Protection Act is a defective implementation of the Commission's Data Protection Directive. It sent a 20-page letter to the UK Government last year, setting out its concerns and raising the prospect of legal proceedings before the European Court of Justice. This letter and its content have been kept secret.

The Department of Constitutional Affairs (DCA), the part of the UK Government responsible for data protection, has told OUT-LAW that it believes that there was nothing wrong with the Data Protection Act. It argues that the Court of Appeal's view in Durant is being widely misinterpreted and that it is this which is causing some of the difficulties with the Commission.

A spokesman for the DCA told OUT-LAW, "We have ongoing discussions with the Commission and are making progress towards a resolution of its concerns". However, he added that by Christmas, if there is no agreement, "the Commission could decide to commence infraction proceedings proper".

The Commission has already commenced infraction proceedings against Germany and Austria for implementing the legislation in a way that does not guarantee the independence of their data protection authorities. According to the Commission, this is in breach a Directive obligation which requires that data protection bodies be completely independent from government.

Mr Durant spoke to OUT-LAW about his decision to withdraw his petition to the UK's highest court. "I have gone to every conceivable regulator, gone through every conceivable complaints procedure and tried every Court in the land except the House of Lords," he said. "None of these bodies has said to me 'let us try and resolve my complaint.'"

He explained that the costs were projected to rise into the tens of thousands of pounds and he was unsupported by legal aid. "I could not overlook being bankrupted by the mounting costs associated with losing my tussle," he said.

"It is very sad," Mr Durant concluded, "that in a case which has constitutional implications for every UK citizen, legal aid cannot be obtained."

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